Exhibit 99.1
INFORMATION MANAGEMENT
SERVICES AGREEMENT
This Information Management Services Agreement (this "Agreement"), dated as
of the date set forth on the signature page hereto, is by and between MangoSoft,
Inc. ("MangoSoft") and Built Right Networks, LLC ("Right Networks").
WHEREAS, MangoSoft desires to outsource the Information Management Services
used to provide (1) Service Operations, (2) Internal IT Operations, (3) Customer
Support, (4) Reseller Support, (5) Employee Support, and (6) Software Support
Engineering; and
WHEREAS, Right Networks has special skills relevant to providing these
Information Management Services.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the adequacy and sufficiency of which are hereby acknowledged, MangoSoft and
Right Networks hereby agree as follows:
Section 1. Information Management Services.
Right Networks agrees to provide to MangoSoft the following Information
Management Services under the terms of this Agreement:
(a) The Service Operations described in Exhibit D.
(b) The MangoSoft Internal IT Operations defined in Exhibit E.
(c) The MangoSoft Customer Support defined in Exhibit F.
(d) The MangoSoft Reseller Support defined in Exhibit G.
(e) The MangoSoft Employee Support defined in Exhibit H.
(f) The Software Support Engineering defined in Exhibit I.
Right Networks shall provide these services using hardware and software
provided by MangoSoft. MangoSoft will replace their hardware and will maintain
their software licenses as needed in connection with Right Networks performance
of these services. Right Networks will install software updates provided by
MangoSoft and will provide best efforts to install replacement hardware provided
by MangoSoft as needed in connection with Right Networks performance of these
services.
Section 2. Grant of Rights.
(a) MangoSoft hereby grants Right Networks a non-exclusive right to utilize
MangoSoft's trademarks specified in Exhibit B hereto in connection with Right
Networks' performance of services within the scope of this Agreement. When using
MangoSoft's trademarks, Right Networks shall indicate that MangoSoft is the
owner of such trademarks
(b) MangoSoft hereby grants Right Networks a non-exclusive right to
maintain MangoSoft's source code according to the terms of the MangoSoft's
Software License Agreement (Exhibit J) in connection with Right Networks'
performance of services within the scope of this Agreement.
(c) Right Networks acknowledges and agrees with MangoSoft that, as between
MangoSoft and Right Networks: (i) all title, including but not limited to
copyrights, trademarks, patent rights and trade secrets, in and to the "Products
and Services" specified in Exhibit A, are owned by MangoSoft; and (ii) all
improvements, updates, modifications, or enhancements to the Products and
Services (each a "Derivative Work"), whether or not conceived or made in the
course of or as a result of Right Networks' performance under this Agreement,
are and shall remain the property of MangoSoft, and any developments or
expenditures made by Right Networks in connection with the Products and Services
or Derivative Works shall not give or vest Right Networks with any right, title
or interest in the Products and Services or any Derivative Works.
(d) Right Networks agrees that it shall not (i) remove or alter any
copyright notices on the Products and Services; (ii) reverse engineer, decompile
or disassemble the Products and Services; or (iii) export or re-export the
Products and Services to any country, person or entity subject to U.S. export
restrictions without the appropriate licenses or consents.
(e) Nothing contained in this Agreement shall be construed as creating a
joint venture, partnership or employment relationship between Right Networks and
(i) MangoSoft, (ii) MangoSoft's Customers, or (iii) MangoSoft's Resellers and,
nor shall either party have the right, power or authority to create any
obligation or duty, express or implied, on behalf of the other. It is further
expressly understood and agreed that no usage of trade or other regular practice
or method of dealing either within the computer software industry, or any other
technology-related industry, shall be used to modify, interpret, supplement or
alter in any manner the express terms of this Agreement.
Section 3. Representations and Warranties of MangoSoft.
MangoSoft represents and warrants to Right Networks as follows:
(f) MangoSoft shall: (i) provide Right Networks with access to MangoSoft's
facilities in connection with Right Networks's performance of services within
the scope of this Agreement; (ii) maintain its lease for its facility in Nashua,
NH or equivalent; (iii) maintain its contract with WorldCom for Internet
services or equivalent; and (iv) will use its best efforts to maintain Right
Network's reputation and goodwill and will not misrepresent or disparage any
Information Management Services.
(g) MangoSoft has the full right, power and authority to enter into and
to perform this Agreement. The execution, delivery and performance of this
Agreement by MangoSoft has been duly authorized by all necessary corporate
action by MangoSoft, and this Agreement constitutes a valid and binding
obligation of MangoSoft enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally.
Section 4. Representations and Warranties of Right Networks.
Right Networks represents and warrants to MangoSoft as follows:
(h) Right Networks (i) has special skills relevant to providing these
Information Management Services; and (ii) will use its best efforts to maintain
MangoSoft's reputation and goodwill and will not misrepresent or disparage any
Products and Services.
(i) Right Networks has the full right, power and authority to enter into
and to perform this Agreement. The execution, delivery and performance of this
Agreement by Right Networks has been duly authorized by all necessary corporate
action by Right Networks, and this Agreement constitutes a valid and binding
obligation of Right Networks enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the rights of creditors generally.
Section 5. Payments to Right Networks.
Payments to Right Networks hereunder shall be made as follows:
(j) All payments under this Agreement shall be made in accordance with
this Section 5 and the terms set forth in Exhibit C hereto. The payments to
Right Networks hereunder do not include any taxes, duties or similar fees that
may be collectable or withheld pursuant to applicable law. Except as otherwise
specified herein, all payments to Right Networks will be made in U.S. dollars,
free of any currency controls or other restrictions.
(k) Payments to Right Networks hereunder shall be due and payable by
MangoSoft on the first of each month for which Right Networks will provide the
Information Management Services.
Section 6. Termination
(l) Either party hereto shall have the right to terminate this Agreement
upon 90 calendar days written notice to the other party.
(m) Either party hereto may terminate this Agreement upon 30 calendar
days written notice in the event a party hereto (i) is in material breach of any
term or condition of this Agreement and fails to remedy such breach within 30
days after receipt of written notice of such breach given by the non-breaching
party; (ii) becomes insolvent; (iii) voluntarily files or has filed against it a
petition under applicable bankruptcy or insolvency laws which such party fails
to have released within 30 calendar days after filing; (iv) proposes any
dissolution or financial reorganization with creditors or if a
receiver, trustee, custodian or similar agent is appointed or takes possession
with respect to all or substantially all property or business of such party; or
(v) makes a general assignment for the benefit of creditors.
Upon termination of this Agreement, all software, software licenses,
hardware, office furniture, equipment, documents, records, books, tapes, disks
and files provided or purchased by by MangoSoft shall be returned to MangoSoft
in substantially the same condition as received, ordinary wear and tear
accepted. Upon termination of this Agreement, all all software, software
licenses, hardware, office furniture, equipment, documents, records, books,
tapes, disks and files provided or purchased by Right Networks shall be returned
to Right Networks in substantially the same condition as received, ordinary wear
and tear accepted. Neither MangoSoft nor Right Networks shall dispose of the
other party's property without the prior consent of the other party.
Section 7. Service Level Warranties.
The service levels warranties provided by Right Networks for Information
Management Services are specified in exhibits D, E, F, G, and H attached to this
Agreement. Except for those service levels, Right Networks does not warrant that
the functions contained in or performance of Information Management Services
will meet any requirements that you may have, and Right Networks disclaims all
other warranties of any kind, either expressed or implied, including, without
limitation, implied warranties of merchantability and fitness for a particular
purpose.
Section 8. No Liability for Unauthorized Use.
MangoSoft is solely responsible for ensuring that each password or
encryption key related to the Information Management Services is utilized only
by MangoSoft or, if applicable, by your authorized employees and agents. Right
Networks shall have no liability for any loss, claim, damages or other liability
that may arise from the unauthorized use of a password or an encryption key. If
a password or an encryption key is lost or stolen it is MangoSoft's
responsibility to notify Right Networks of such loss or theft so that the
password or encryption key can be deactivated and a new one assigned. If any of
MangoSoft employees or agents shall no longer be authorized to use a password or
an encryption key it shall be your responsibility to notify Right Networks.
Right Networks will use commercially reasonable efforts to effect password
deactivation requests as soon as practicable after their receipt in writing from
MangoSoft. Notices should be sent in accordance with Section 18 of this
Agreement.
Section 9. Indemnification.
(n) MangoSoft shall indemnify and hold harmless Right Networks and its
directors, officers, employees and agents from any claims, suits, losses,
liabilities, damages, court judgments or awards and the associated costs and
expenses (including attorney's fees) (collectively, "Losses"), incurred in
connection with (i) any actual infringement by the Products and Services of any
patent, copyright, trade secret, trademark, mask work right or other proprietary
rights of a third party or (ii) MangoSoft's breach of any term or condition of
this Agreement. Right Networks may, at its own expense, assist in such defense
if it so chooses, provided that MangoSoft shall control such defense and all
negotiations in connection with the settlement of any such claim and
Right Networks shall, in the event of a settlement, provide MangoSoft with a
release from the indemnification provided hereunder. Right Networks shall
promptly provide MangoSoft with written notice of any claim that Right Networks
believes falls within the scope of this Section.
(o) Should the use of the Products and Services be enjoined in connection
with clause (a)(i) above, or in the event MangoSoft wishes to minimize its
potential liability thereunder, MangoSoft may, at its option: (i) substitute a
fully equivalent non-infringing unit of the Products and Services; (ii) modify
the infringing Products and Services so that it no longer infringes but remains
functionally equivalent; or (iii) obtain for Right Networks or its customers, at
MangoSoft's expense, the right to continue use of such Products and Services. In
the event that MangoSoft is unable to effect any of the actions contemplated by
the foregoing clauses (i), (ii) or (iii), MangoSoft shall provide Right Networks
with written notice of such inability and Right Networks shall cease all sales
of the subject Products and Services. In such event, MangoSoft shall reimburse
Right Networks for any payments made by Right Networks to MangoSoft hereunder in
respect of any such Products and Services. The indemnification contemplated by
this Section shall not apply to such infringement to the extent it arises solely
from modifications made to the Products and Services by Right Networks pursuant
to this Agreement or otherwise.
(p) Right Networks shall indemnify and hold harmless MangoSoft and its
directors, officers, employees and agents from and against any and all Losses
incurred in connection with (i) any actual or alleged infringement by any
Products and Services of any patent, copyright, trade secret, trademark, mask
work right or other proprietary rights of a third party in the event such
infringement arises because of the creation of any Derivative Work or (ii) Right
Networks's breach of any term or condition of this Agreement. MangoSoft may, at
its own expense, assist in such defense if it so chooses, provided that Right
Networks shall control such defense and all negotiations in connection with the
settlement of any such claim and MangoSoft shall, in the event of a settlement,
provide Right Networks with a release from the indemnification provided for
hereunder. MangoSoft shall promptly provide Right Networks with written notice
of any claim which MangoSoft believes falls within the scope of this Section.
Section 10. Non-Disclosure of Confidential Information.
Right Networks acknowledges that the Products and Services constitute
proprietary technology and trade secrets of MangoSoft. Accordingly, Right
Networks agrees that, except as agreed to in writing by MangoSoft and in
connection with providing the Information Management Services Right Networks
shall use reasonable efforts to cause its employees and agents not to: (i)
disclose or otherwise disseminate to any individual, partnership, corporation,
limited liability company, association, business trust, joint venture or other
entity of any kind or nature any information relating to the Products and
Services including but not limited to source or object code, patents, systems,
trademarks, design, methodologies, processes, content, know-how, authorship,
applications and compatibility with other software and documentation; and (ii)
reproduce, copy or modify the Products and Services in whole or in part, except
as required hereunder or as described in the MangoSoft's Commissioned Reseller
Agreement.
Section 11. No Warranties of MangoSoft Products and Services.
MANGOSOFT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR
IMPLIED, WITH REGARD TO THE PRODUCTS AND SERVICES AND THE PROVISION OF OR
FAILURE TO PROVIDE TECHNICAL SUPPORT, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
RIGHT NETWORKS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR
IMPLIED, WITH REGARD TO MANGOSOFT'S PRODUCTS AND SERVICES EXCEPT AS DEFINED IN
SECTION 7 OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES
OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 12. Limitation of Liability.
(q) IN NO EVENT SHALL MANGOSOFT BE LIABLE TO RIGHT NETWORKS FOR ANY
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF THE USE
OF OR INABILITY TO USE THE PRODUCTS AND SERVICES OR THE FAILURE TO PROVIDE
TECHNICAL SUPPORT, EVEN IF MANGOSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
(r) Except for the service level warranties of Section 7 of this
Agreement, in no event will Right Networks be liable for: (a) any direct,
incidental or consequential damages (including, without limitation, indirect,
special, punitive, or exemplary damages for loss of business, loss of profits,
business interruption, or loss of business information) arising out of your use
of or your inability to use the Information Management Services or for any claim
by any other person or party, including claims relating to the infringement of
intellectual property rights, even if Right Networks has been advised of the
possibility of such damages; or (b) any losses or damages arising from the
unauthorized use of Information Management even if Right Networks is advised of
such unauthorized use in accordance with Section 8 of this Agreement. The
foregoing limitation applies to the acts, omissions, negligence, and gross
negligence of Right Networks, its officers, employees, agents, contractors or
representatives which, but for this provision, would give rise to a cause of
action against Right Networks and such persons in contract, tort or any other
legal doctrine.
(s) In the event that, as a direct result of Right Networks actions or
inaction, MangoSoft provides a remedy to MangoSoft's customers under MangoSoft's
service level agreements, then, as the sole and exclusive remedy hereunder,
MangoSoft shall receive a service credit equal to that provided by MangoSoft to
its customer. Right Networks shall have no liability and shall not be required
to grant a service credit for any failure to provide Information Management
Services: (i) during Scheduled Downtime; (ii) resulting from an event that
causes Right Networks to be unable to fulfill its
obligations to you because of flood, extreme weather, fire or other natural
calamity, acts of governmental agencies, war, riot, civil unrest, work stoppages
or strikes, or similar causes beyond the control of Right Networks; or (iii)
caused, directly or indirectly, by the acts or omissions of MangoSoft's
representatives or by unauthorized users of MangoSoft's equipment.
Section 13. Injunctive Relief.
Right Networks acknowledges that the harm which might result to
MangoSoft's business as a result of any noncompliance by Right Networks with any
of the provisions of this Agreement would be largely irreparable. In the event
of a breach or threatened breach of Right Networks's duties and obligations
under this Agreement, Right Networks agrees that MangoSoft shall be entitled, in
addition to any other legal or equitable remedies it may have, including any
right to damages that it may suffer, to temporary, preliminary and permanent
injunctive relief restraining such breach or threatened breach. Right Networks
agrees that if there is a question as to the enforceability of any of the
provisions of this Agreement, Right Networks will not engage in any conduct
inconsistent with or contrary thereto until after the question has been resolved
by an arbitrator, mediator or final judgment of a court of competent
jurisdiction.
Section 14. Severability.
The parties hereto intend that each section of this Agreement should be
viewed as separate and divisible, and in the event that any section, provision,
agreement or condition of this Agreement shall be held to be invalid, void, or
unenforceable, such section, provision, covenant or condition shall be enforced
to the maximum extent permitted under applicable law and the remainder of the
provisions of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
Section 15. Governing Law; Jurisdiction; Venue.
This Agreement and the performance hereunder shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to such State's rules governing the conflicts of laws. In addition, each
of the parties hereto irrevocably consents to the exclusive jurisdiction of the
courts of the State of New York, County of New York, and of any federal court
located in the State of New York, County of New York, in connection with any
action or proceeding arising out of or relating to, or a breach of, this
Agreement, or any document or instrument delivered in connection with this
Agreement.
Section 16. Assignment.
This Agreement may only be assigned to a person other than an affiliate
of the parties hereto with the written consent of the non-assigning party.
Section 17. Amendments.
This Agreement may only be modified or amended by an instrument in
writing signed by MangoSoft and Right Networks.
Section 18. Notices.
All notices, claims, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered or if sent by a nationally-recognized overnight courier, by facsimile,
or by registered or certified mail, return receipt requested and postage
prepaid, addressed as follows:
if to the MangoSoft:
MangoSoft, Inc.
1500 West Park Drive, Suite 190
Westborough, Massachusetts 01581
Facsimile No.: (508) 871-7380
Attention: President;
if to Right Networks:
Built Right Networks, LLC.
12 Pine St Extension
Nashua, New Hampshire 03060
or to such other address as the party to whom notice is to be given may
have furnished to the other party in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of a
nationally-recognized overnight courier, on the next business day after the date
when sent, (c) in the case of facsimile, when received, and (d) in the case of
mailing, on the third business day following that on which the piece of mail
containing such communication is posted.
Section 19. Headings and Pronouns.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be a part of this
Agreement. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of names and pronouns shall include the plural and vice versa.
Section 20. Entire Agreement.
This Agreement constitutes the entire agreement between the parties hereto
pertaining to the subject matter contained herein and supersedes any and all
other prior or contemporaneous agreements, arrangements and understandings,
either oral or in writing, between the parties hereto with respect to the
subject matter hereof. Each party to this Agreement acknowledges and represents
that no representations, warranties, covenants, conditions, inducements,
promises or agreements, oral or otherwise, other than as set forth herein, have
been made by either party hereto or anyone acting on behalf of either party.
Section 21. Counterparts.
This Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Information
Management Services Agreement as of the date specified below.
MANGOSOFT, INC.
Date: ________________ By:_____________________________
Print name: Dale Vincent
Title: CEO
BUILT RIGHT NETWORKS, LLC
By:_____________________________
Print name:
Title:
EXHIBIT A
Products and Services
Mangomind Service
Mangomind Product
FileTRUST Service
Cachelink Product
EXHIBIT B
Trademarks and Servicemarks
"CacheLink"
"MangoSoft"
"Mango"
"Pool"
"Pooling"
"Mangosoft"
"Mangomind"
"The Business Internet File Service"
EXHIBIT C
Payments
$30,000 per month
EXHIBIT D
Service Operations
Right Networks will provide MangoSoft with service operations as
follows:
(t) Right Networks will manage, using hardware and software provided by
MangoSoft, the Mangomind service to the level required to satisfy the Service
Level Agreement for Mangomind made between MangoSoft and its customers.
(u) Right Networks will manage, using hardware and software provided by
MangoSoft, the FileTRUST service to the level required to satisfy the Service
Level Agreement for FileTRUST made between MangoSoft and its customers.
(v) Right Networks will manage, using hardware and software provided by
MangoSoft, the MangoSoft Corporate Web Site (www.mangosoft.com) service
operations to provide for the availability of the MangoSoft Corporate Web Site
99% of the time, except for Scheduled Downtime that will consist of up to eight
hours per month at any time mutually agreed upon by Right Networks and
MangoSoft.
EXHIBIT E
MangoSoft Internal IT Operations
Right Networks will provide MangoSoft with internal IT operations
services as follows:
(w) Right Networks will manage, using hardware and software provided by
MangoSoft, MangoSoft's Great Plains accounting server.
(x) Right Networks will manage, using hardware and software provided by
MangoSoft, MangoSoft's Exchange server and email routing and filtering system.
(y) Right Networks will manage, using hardware and software provided by
MangoSoft, the Shoreline telephone system.
(z) Right Networks will manage, using hardware and software provided by
MangoSoft, the account administration systems used for the creation and
management of Mangomind service accounts, FileTRUST service accounts, and
Cachelink product licenses.
Right Networks will provide for the availability of the above MangoSoft
Internal IT Operations to MangoSoft Employees (Exhibit H) between 8 a.m. and 5
p.m. Boston time, Monday through Friday to a service level that does not
significantly impair the MangoSoft Employees' ability to perform their jobs. In
addition, Right Networks will provide for the availability of the above
MangoSoft Internal IT Operations as required by Right Networks to provide the
support services of Exhibits F, G, and H of this Agreement.
EXHIBIT F
MangoSoft Customer Support
Right Networks will provide MangoSoft with customer support services as
follows:
(aa) Right Networks will provide support to MangoSoft's Mangomind
service Customers, using telephone, web, and email services provided by
MangoSoft, in a manner consistent with Section E of Schedule A of the Service
Level Agreement for Mangomind made between MangoSoft and its customers.
(bb) Right Networks will provide support to MangoSoft's FileTRUST
service Customers, using telephone, web, and email services provided by
MangoSoft, on a 24 hours per day, 7 days per week, 365 days per year basis.
FileTRUST support requests will be responded to by 12 p.m. on the business day
following the day the request is received.
(cc) Right Networks will provide support to MangoSoft's Cachelink
product Customers, using telephone, web, and email services provided by
MangoSoft, in a manner consistent with the Cachelink End User License Agreement
on a 24 hours per day, 7 days per week, 365 days per year basis. Cachelink
support requests will be responded to by 12 p.m. on the business day following
the day the request is received.
The term "Customer" in this Exhibit F means a business or individual
who either (i) is paying for the Mangomind service or the FileTRUST service;
(ii) has purchased the Cachelink product; (iii) is using the Mangomind service
within its trial period; or (iv) is using the Cachelink product within its trial
period.
EXHIBIT G
MangoSoft Reseller Support
Right Networks will provide support to MangoSoft's Resellers, using
telephone, web, and email services provided by MangoSoft, in a manner consistent
with Exhibit D of the Value Added Reseller Agreement made between MangoSoft and
the Reseller.
The term "Reseller" in this Exhibit F means a business or individual
who has entered into and is bound by MangoSoft's Value Added Reseller Agreement
with MangoSoft.
EXHIBIT H
MangoSoft Employee Support
Right Networks will provide support to MangoSoft's Employees in their use
of MangoSoft Internal IT Operations, using telephone, web, and email services
provided by MangoSoft, between 8 a.m. and 5 p.m. Boston time, Monday through
Friday.
Support requests can be made either via telephone by dialing 888-88MANGO
and selecting option 2 (support) or via email to support@mangosoft.com.
The MangoSoft Employees to whom Right Networks provide this support are
those who fill the following positions at MangoSoft:
(dd) Chief Executive Officer
(ee) Accounting Manager
(ff) Chief Technical Officer
EXHIBIT I
Software Support Engineering
Right Networks will provide best-effort software support engineering
services to correct problems reported by MangoSoft customers with MangoSoft's
Mangomind, FileTRUST, Cachelink, and Corporate Web Site source code. Right
Networks' access to MangoSoft source code will be in accordance with MangoSoft's
Source License Agreement and the following:
(gg) RIGHT NETWORKS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER
EXPRESS OR IMPLIED, WITH REGARD TO RIGHT NETWORKS ABILITY TO CORRECT ANY
PROBLEMS WITH MANGOSOFT'S SOURCE CODE. RIGHT NETWORKS DISCLAIMS ALL WARRANTIES
AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH REGARD TO ANY SOURCE CODE
CHANGES IT PROVIDES AND THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL
SUPPORT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(hh) IN NO EVENT SHALL RIGHT NETWORKS BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR
INABILITY TO ANY SOURCE CODE CHANGES IT PROVIDES OR THE FAILURE TO PROVIDE
TECHNICAL SUPPORT, EVEN IF RIGHT NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
EXHIBIT J
SOFTWARE LICENSE AGREEMENT FOR MANGOSOFT SOFTWARE
IMPORTANT-READ CAREFULLY
This is a legal agreement between you (either an individual or an entity) and
MangoSoft, Inc. (Mangosoft), the developer of the SOFTWARE PRODUCT identified in
Exhibit A. The SOFTWARE PRODUCT includes computer software, the associated
media, any printed materials, and any "online" or electronic documentation. By
installing, copying, or otherwise using this SOFTWARE PRODUCT, you agree to be
bound by the terms of this agreement and agree to use best efforts to ensure
that your employees and agents who use the SOFTWARE PRODUCT have read this
Agreement and will comply with the terms. If you do not agree to the terms of
this license agreement, Mangosoft is unwilling to license the SOFTWARE PRODUCT
to you. In such event, you may not install, copy, or use the SOFTWARE PRODUCT
and should contact Mangosoft for information on how to return the unused
SOFTWARE PRODUCT for refund.
SOFTWARE LICENSE AGREEMENT (SLA)
This SOFTWARE PRODUCT is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The SOFTWARE
PRODUCT is licensed to you; it is not sold to you.
1. YOUR RIGHTS IN USAGE. This agreement grants you the following rights:
1.1 Software. Subject to the terms of this SLA, Mangosoft grants to you the non-
exclusive, non-transferable right to use the SOFTWARE PRODUCT.
2. OTHER RIGHTS AND LIMITATIONS
2.1 Compliance with Third Party Licenses. The source code license granted under
this SLA is for use of the SOFTWARE PRODUCT only. This SLA is not intended to
counteract, annul, circumvent, obviate, avoid, evade or bypass any third party
licensing arrangement for other software and/or hardware products that may be
required. You are solely responsible for ensuring compliance with licensing
agreements with any and all third party software and/or hardware providers.
2.2 RESTRICTIONS ON USE. YOU AGREE THAT WHEN USING THE SOFTWARE PRODUCT, YOU
WILL NOT: PUBLISH, DISPLAY, DISCLOSE, RENT, MODIFY, LOAN OR DISTRIBUTE ANY
PART OF THE SOFTWARE PRODUCT. YOU AGREE NOT TO CREATE DERIVATIVE WORKS BASED
ON THE SOFTWARE PRODUCT OR ANY PART OF THE SOFTWARE PRODUCT, WITHOUT THE
WRITTEN CONSENT OF THE MANGOSOFT, INC., AND ALL SUCH DERIVATIVE WORKS SHALL
BECOME THE PROPERTY OF MANGOSOFT, INC THIS SLA IS EXPRESSLY MADE SUBJECT TO
ANY LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON THE EXPORT OF THE
SOFTWARE PRODUCT FROM THE UNITED STATES THAT MAY BE IMPOSED FROM TIME TO
TIME BY THE GOVERNMENT OF THE UNITED STATES. USERS FROM CERTAIN RESTRICTED
COUNTRIES MAY BE PROHIBITED FROM USING THE SOFTWARE PRODUCT. YOU AGREE TO
RESTRICT THE USE OF THE SOFTWARE PRODUCT THAT MAY BE IN VIOLATION OF UNITED
STATES EXPORT RESTRICTIONS.
2.3 Compliance With Laws. You agree to comply with all laws, rules and
regulations now or hereafter promulgated by any government authority or
agency that govern or apply to the transmission or display of data on the
Internet or other computer networks.
2.4 INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS MANGOSOFT AND ITS
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM ANY AND ALL CLAIMS, DAMAGES,
COSTS, EXPENSES OR LAWSUITS, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING OUT
OF OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE PRODUCT.
2.5 SOFTWARE PRODUCT Transfer. You may not sell, license, sublicense, rent,
lease or otherwise transfer the source code to the SOFTWARE PRODUCT.
2.6 Termination. Mangosoft may terminate this agreement upon written notice to
you at any time or if you fail to comply with the terms and conditions of this
agreement. In such event you must purge the SOFTWARE PRODUCT from your system
and either destroy the SOFTWARE PRODUCT or return all copies of the SOFTWARE
PRODUCT to Mangosoft.
3. UPGRADES. If the SOFTWARE PRODUCT is an upgrade of a Mangosoft product, the
upgrade is now considered the SOFTWARE PRODUCT and is expressly subject to this
SLA.
4. PRODUCT SUPPORT. Mangosoft or its designated agents may provide limited
support for the SOFTWARE PRODUCT. Please refer to the Mangosoft Web site
(http//www.mangosoft.com) for additional information on support options.
5. Ownership. As between Mangosoft and you, all title to the SOFTWARE PRODUCT
(including, but not limited to, copyright, trademarks, patent rights, trade
secrets and any images, photographs, animation, video, audio, music, text,
graphics and "applets"
incorporated into the SOFTWARE PRODUCT and any component of the SOFTWARE
PRODUCT, including but not limited to, drivers, VxDs, utility programs, system
software, help files, web pages and objects), the accompanying printed
materials, and any and all copies of the SOFTWARE PRODUCT, shall remain the
property of Mangosoft, its successors and assigns. You may not, and cannot
permit others to, copy any part of the SOFTWARE PRODUCT. All rights not
specifically granted under this SLA are reserved by Mangosoft. You may not
remove any copyright, trademark, proprietary rights, disclaimer or warning
notice included on or embedded in the SOFTWARE PRODUCT.
OTHER PROVISIONS
This SLA and warranty are governed by the laws of the Commonwealth of
Massachusetts, U.S.A., without regard to its principles regarding conflicts of
laws, and you expressly agree that the state and federal courts of the
Commonwealth of Massachusetts shall have exclusive venue and jurisdiction in
such case. The parties hereto expressly exclude the United Nations Convention on
Contracts for the International Sale of Goods from this SLA.
WARRANTY
1. LIMITED WARRANTY. MANGOSOFT PROVIDES A LIMITED WARRANTY ON THE SOFTWARE
PRODUCT FOR A PERIOD OF THIRTY (30) DAYS FROM DATE OF PURCHASE (THE "WARRANTY
PERIOD"). ANY IMPLIED WARRANTIES ON THE SOFTWARE ARE LIMITED TO THIRTY (30)
DAYS. SOME STATES/JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN
IMPLIED WARRANTY, SO THE ABOVE LIMITIATION MAY NOT APPLY TO YOU. MANGOSOFT DOES
NOT WARRANT THAT YOUR USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR
FREE.
2. CUSTOMER REMEDIES. MANGOSOFT'S AND ITS SUPPLIERS' ENTIRE LIABILITY AND YOUR
EXCLUSIVE REMEDY SHALL BE, AT MANGOSOFT'S SOLE OPTION, EITHER (A) RETURN OF THE
PRICE PAID, OR (B) REPAIR OR REPLACEMENT OF THE SOFTWARE PRODUCT THAT DOES NOT
MEET THIS LIMITED WARRANTY AND WHICH IS RETURNED TO MANGOSOFT WITH A COPY OF
YOUR RECEIPT. THIS LIMITED WARRANTY IS VOID IF FAILURE OF THE SOFTWARE PRODUCT
HAS RESULTED FROM ACCIDENT, ABUSE, OR MISAPPLICATION. ANY REPLACEMENT SOFTWARE
PRODUCT WILL BE WARRANTED FOR THE REMAINDER OF THE ORIGINAL WARRANTY PERIOD OR
THIRTY (30) DAYS, WHICHEVER IS LONGER.
3. NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
MANGOSOFT AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH
REGARD TO THE SOFTWARE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS. THIS
LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOPU MAY HAVE OTHERS, WHICH
VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
4. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL MANGOSOFT OR ITS SUPPLIERS BE LIABLE TO YOU OR
ANY THIRD PERSON FOR ANY DAMAGE WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND) ARISING OUT
OF THE USE OF OR INABILITY TO USE THIS SOFTWARE PRODUCT, EVEN IF MANGOSOFT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, MANGOSOFT'S AND
ITS SUPPLIERS' ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE
LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. BECAUSE
SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY
FOR CONSEQUENTIAL OR INCIDENTIAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO
YOU.
5. ULTRAHAZARDOUS ACTIVITIES. THE SOFTWARE PRODUCT IS NOT DESIGNED, MANUFACTURED
OR INTENDED FOR USE IN ANY ENVIROMENT IN WHICH THE FAILURE OF THE SOFTWARE
PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIROMENTAL
DAMAGE, SUCH AS IN THE DESIGN OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT
NAVIGATION OR SYSTEMS, OR IN ON-LINE CONTROL EQUIPMENT IN ANY HAZARDOUS
ENVIROMENT REQUIRING FAIL-SAFE PERFORMANCE ("ULTRAHAZARDOUS ACTIVITIES").
MANGOSOFT, ITS LICENSORS, AND ITS SUPPLIERS SPECIFICALLY DISCALIM ANY EXPRESS OR
IMPLIED WARRANTY OF FITNESS FOR ULTRAHAZARDOUS ACTIVITIES. YOU REPRESENT AND
WARRANT TO MANGOSOFT THAT YOU WILL NOT USE, OR ALLOW OTHERS TO USE, THE SOFTWARE
PRODUCT FOR SUCH PURPOSES.
6. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF
ACTION UNDER WHICH DAMAGES ARE SOUGHT, INCLUDING, WITHOUT LIMITATION, BREACH OF
CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT. BECAUSE SOME JURISDICTIONS
AND STATES MAY NOT ALLOW THE EXCLUSION OF LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTIAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO
YOU.
EXHIBIT A
"SOFTWARE PRODUCT" means the following software and associated source code:
Mangomind
Cachelink
FileTRUST
Mangosoft Corporate Website